Candido Conde-Pumpido said the case against the high-ranking U.S. officials — including former U.S. Attorney-General Alberto Gonzales — was without merit because the men were not present when the alleged torture took place.

"If one is dealing with a crime of mistreatment of prisoners of war, the complaint should go against those who physically carried it out," Conde-Pumpido said in a breakfast meeting with journalists. He said a trial of the men would have turned Spain's National Court "into a plaything" to be used for political ends.

That just doesn't make any sense, because it mean that the people who ordered the abuse could avoid prosecution simply by not being there while it happened. Now I expect that something is being lost because some of the people who were being looked at here weren't policy-makers, most notably Jay Bybee and John Yoo. Bybee and Yoo are loathsome individuals, and are ethically damaged by their participation in the writing of the torture memos, but they weren't in a position to order the torture of detainees, which means that to go after them might be a stretch. I'd like to see some prosecutors give it a try under the theory that by writing those memos, Bybee and Yoo conspired to torture detainees, but that's not an open-and-shut case by any means.

But to suggest that people who weren't present and actively partaking in the abuse can't be prosecuted seems to be an unnecessarily narrow view of this sort of case, and a break with precedent. After all, Spain's the country who prosecuted Pinochet, and there's no reason to believe that Pinochet was there for every crime he was accused of being a part of. So why is this different?